Sir and khudkasht lands attached before vesting were sold in execution of a money decree after the Abolition Act applied. The Supreme Court held section 43 bars such sale absent a mortgage or charge on the cultivating rights; the sale was without jurisdiction.
Appeal allowed; sale in respect of the sir lands set aside; appellant entitled to costs in this Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2 S.C.R. SUPREME COURT REPORTS 191
AHMAD HAFIZ KHAN
' v.
1963
March 4
MOHAMMAD HASAN KHAN
(P. B. GAJENDRAGADKAR, M. HIDAYATULLAH and J.C. SHAH JJ).
Proprietary Right, Abolition of-Operation of enactmentValidity-Oultivating right.• in sir and khudkasht land, if and when protected against sale in execution of the decree-Madh11a Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated fonds) Act, 1950 (M. P. 1of1951), ss. 43, 49.
One Mohd Yusuf, in execution of a money decree against the appellant, attached the appellant's share in a village along with sir and khudkasht lands appurtenant thereto. Before the sale took place, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 M. P. I of 1951) was made applicable to that area, and the proprietary rights in the village vested in the State. On October, 1951, the respondent purchased the sir khudkasht fields in auction sale and the appellant's objection therein having been dismissed, the sale was confirmed. On appeal, the Additional District Judge set aside the sale and the property was restored to the appellant. On further appeal, that order was reversed and the auction purchaser was again put in possession of the property. The appellant then applied to the executing Court objecting that there was no jurisdiction to sell the fields. The objection of the appellant was dismissed by the Civiljudge and his successive appeals to the District Judge and the High Court also failed. On appeal by special leave, the appellant's main contention was that the cultivating rights in the sir lands could not be the subject matter of sale in execution of the decree in view of s, 43 of the Abolition Act.
Held, that by the operation of the' Abolition Act, the proprietor ceases to Le the proprietor of the estate or village including the sir lands appurtenant to the proprietorship. But the cultivating rights in the sir lands which were his home. farm are saved to him and under s. 38 of the Aboliti011 Act he becomes a malik makbuza of these fields. The Abolition Act having deprived the proprietors of their property interest gives protection to them in respect of their new rights in the home ... farm which has become the malik makbuza of the proprietor.
The words of s. 43 are quite clear and the cultivating rights in the sir and Khw!kas/11 land wl;iich became under the
i92 SUPREME COURT REPORTS [1964] vot.
1963
1963 Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mart· A""'ad Hofi: KNvi v. gage or a charge created by the proprietor. That condition Mohi. JIGJan KAon did not exist in the present case and the sale, therefore, must be declared to be without jurisdiction and ordered to be set aside.
Goi·ind Prasad v. Pawan Kumar, J9j5 X L. ]. 678 distinguished.
CIVIL APPELLATE jURISl>W'l'lON : Civil Appeal No. 293 of 1961.
Appeal by special leave from the judgment and order dated December 24, I !!59 of the Madhya Pradesh High Court in Misc. Second Appeal No. 3 of l!J5!l.
II'. S. Bar/ingay and A. G. RatTW.pru1chi, for the appellant.
Ganpat Rai, for the respondent. 1!163. March 4. The .Judgment of the Court was delivered by
Htu:1obdlah J. HUJAYATt;LLAH J.-One l\fohd. Yusaf obtain-:d a money decree for Rs. l 2i7 i7 / - against the appellant, Ahmad Hafiz Khan, on January 14, l!JiiO. In execution of the decree !vfohd. Yusaf attached two annas and 5-7/4.) pies share of the appellant in Mouza Tumhari, Tahsil Sakti, District Bilaspur, alongwith sir and khudl.-asht lands appurtenant thereto. The attachment was made on Septem· bcr 28, 1950. On March 31, 1951, before the sale took place, the yfadhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. I of 1951) was made applicable to that area. In view of the provisions of the Abolition Act the proprietary rights in the village vested in the State. Thus far there is no dispute.
On October J, l!l51, the fields under attach· ment were put to sale and were purchased by the
2 S.C.R. · SUPREME COURT REPORTS 193
respondent, Mohd. Hasan Khan. The appellant filed an application setting forth objections under Order 21 Rule 90 of the Code of Civil Procedure but the application was dismissed and the sale was confirmed on February 1, 1952. The judgment-debtor appealed against the order dismissing the application and on May 1, 1952, the Additional District Judge, Bilaspur, set-aside the sale, and possession of the property was restored to the appellant. On further appeal by the auction purchaser the order of the Additional District Judge was reversecl and the auction purchaser was put in possession o! the property on April 16, 1955. Both the appellant and the auction purchaser applied to the executing court. The appellant raised further objection while the auction purchaser asked for mesne profits under s. 144 of the Code of Civil Procedure. We are concerned with the application oft.he appellant. The objection of the appellant was dismissed by the Civil Judge and his successive appeals to the District Judge and the High Court also failed. The judgment of the High Court passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court. The contention of the appellant is that the cultivating rights in the sir lands could not be the subject matter of sale in execu,tion of the decree in view of s. 43 of the Abolition Act. This argument was not accepted by the High Court and it is contended that the decision of the High / Court is erroneous. In our opinion the contention must be sustained.
1963
Ahmai Hafiz Kh4n v. Mihd. HtZS•n Kk@ 1Hid11yatullahJ,
Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor became, from the date of such loss of right an occupancy tenant of sir lands. This was provided by s. 49 of the Act which, in so far as relevant to the present purpose, read as follows :-
"49, (1) A proprietor, who temporarily or permanently loses, whether under a decree or
...... '' _... .. - .... - ··-
·•-J
~
194 SUPREME COURT REPORTS [1964] VOL.
1963 Al1n10d Haft< Kliao •• M1hi. /ios.,. Kha.
llit•J•h,l/ah J.
order of a Civil Court or a transfer or otherwise, his right to occupy his sir-land, in whole or in par:, as a proprietor, shall at the date of such loss, become an occupancy tenant of such sir-land except in the following cases,-
(The other sub-sections are not relevant)
The effect of the loss of proprietorship by reason of the Abolition Act is almost the same except that a new right is created in the quondam proprietor in respect of his sir lands. On the passing of the proprietary interest to the State what remains to the proprietor is his cultivating rights in the sir fields and the Abolition Act provides in s. 4 (2) that the proprietor "shall continue to retain the possession of his ............ home-farm land". "Home-farm" is defined by s. 2 (g) (i) as "land recorded as sir and khwikasht in the name of the proprietor in the annual papers for the year UH8-4H.'' Thus by the operation of the Abolition Act, the proprietor ceases to be the proprietor of the estate or village including the sir lands appurtenant to the proprietorship. But the cultivating rights in the sir lands which were his hnme-farm arc saved to him and under s. 38 of the Abolition Act he becomes a rfUJlik makbuza of these fields. The Abolition Act having deprived the proprietors of their proprirtary interest gives some protection to them in respect of their new riKhts iu tho home-farm which has become the malik makbuza
2 s.a.R. SUPREME COURT REPORTS 195
of the proprietor. Section 43 of the Abolition Act provides as follows :-
"Any land which immediately before the date of vesting, was held in absolute occupancy or occupancy right or recorded as sir-land, shall not be liable to attachment or sale in execution of a decree or order for the recovery of any debt incurred before the date of vesting except where such debt was validly secured by mortgage_ of or a charge on the absolute occupancy or occupancy land or the cultivating right in the sir-land."
19il
Ahmad Hafiz Khan •• Mohd. Has .. Khan Hid•yctull.h /.
By this section attachment and sale of the cultivating right in sir lands is barred unless there is a mortgage of or a charge on, the cultivating rights. The section applies to decrees in respect of debts prior to the vesting in the State as in the case here.
In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area. There was no mortgage of or charge on the cultivating rights in sir. The decree holder Mohd. Yusaf had only a moneydecree and the attachment cannot be said to have created a charge on the attached property so as to make it a secured debt within the latter part of s. 43. There being no secured debt and the cultivating rights not having been mortgaged or charged there could be no sale of these fields after the Abolition Act came into force. The sale was, therefore, without jurisdiction, and thus illegal.
The learned single Judge in the High Court relied upon a Division Bench ruling of his own Court reported in Govind Prasad v. Pawan Kumar ('), where it was held that after the Abolition Act an attachment of the proprietary share in the village including the sir and khudlcasl!t lands appurtenant thereto made before the Abolition Act got transferred (I) 1~55 N. L. J. 678.
196 SUPREME COURT REPORTS [1964) VOL.
1963
1963 to the home-farm after the appointed date. It is argued that if the attachment could subsist on the .Hmad llajiz Khan
v, home·farm then the homc·farm could also be sold. Mohd, Hasan Klan In the ruling the question whether a sale of the culli· llidcyllu/W. J, vating rights in the home-farm could take place after the Abolition Act came into force was not considered at all. There the attachment had been effected be· fore the Abolition Act came into force and it was held that the attachment must continue on the home· farm. It was not noticed that the attachment would be useless if the sale could not take place and the attention of the Bench does not appear to ha1•e been drawn to the provisions of s. 43 of the Abolition Act, otherwise the Bench would have mentioned it. In any event, the words of s. 43 are quite clear and the cultivatin1_: rights in the sir and khudkasht land which became under the Act the home·farm of the proprietor arc protected against sale except where those cultirnting rights were the subject of a mortga~c or a charge created by the proprietor. That condition docs not exist in the present case and the sale, therefore, must be declared to be without _jurisdiction and ordered to be set-aside.
\Ve accordingly allow the appeal and set aside the sale in respect of the sir lands appurtenant to the original proprietary share. The appellant shall be entitled to his costs in this (>>urt hut rnsts incurreci in the High Court or the Court below shall he borne as incurred.
App1-nl a/101vol.
1 issue framed by the court
Whether cultivating rights in sir and khudkasht land could be sold in execution of a pre-vesting money decree after the Madhya Pradesh Abolition of Proprietary Rights Act came into force.
Colour shows how this judgement treated each authority
Govind Prasad v. Pawan KumarDistinguished¶50
(I) 1955 N.L.J. 678
5 provisions across 3 enactments
Ahmad Hafiz Khan
Mohammad Hasan Khan
P. B. Gajendragadkar
M. Hidayatullah
J. C. Shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
